Anrudh Das vs The State Of Bihar
2021 Latest Caselaw 4804 Patna

    IN THE HIGH COURT OF JUDICATURE AT PATNA
                CRIMINAL APPEAL (SJ) No.2523 of 2019
    Arising Out of PS. Case No.-398 Year-2015 Thana- PARBATTA District- Khagaria
======================================================

Anrudh Das Son of Late Fudo Yadav @ Fudo Das Resident of Village- Parbatta, Police Station- Parbatta, District- Khagaria.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s

WITH

CRIMINAL APPEAL (SJ) No. 2678 of 2019 Arising Out of PS. Case No.-398 Year-2015 Thana- PARBATTA District- Khagaria ====================================================== Birbal Das @ Birbal Yadav Son of Late Fudo Yadav @ Fudo Das Resident of Village - Parbatta, P.S.- Parbatta, Distt - Khagaria.

... ... Appellant/s Versus The State of Bihar

... ... Respondent/s ====================================================== Appearance :

(In CRIMINAL APPEAL (SJ) No. 2523 of 2019) For the Appellant/s : Mr. Syed Masleh Uddin Ashraf, Advocte For the Respondent/s : Mr. Binod Bihari Singh, APP (In CRIMINAL APPEAL (SJ) No. 2678 of 2019) For the Appellant/s : Mr. Syed Masleh Uddin Ashraf, Advocate For the Respondent/s : Mr. Abhay Kumar, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR CAV JUDGMENT Date : 28-09-2021

Both the appellants, above named, along with

others were arrayed as accused in Parbatta P.S. Case No.398 of

2015 registered under Sections 304B, 201/34 of the Indian Penal

Code on the written report of Arvind Yadav of village Ariya,

P.S. Parbatta, District- Khagaria. After investigation of the case Patna High Court CR. APP (SJ) No.2523 of 2019 dt.28-09-2021

police exonerated several accused vide Charge-sheet No.175

dated 17.04.2016. However, sent to appellant Anrudh Das for

trial and investigation against appellant Birbal Yadav and non-

FIR accused Nandu Yadav was kept pending. Thereafter,

another charge-sheet under Section 173 Cr.P.C. was filed vide

Charge-sheet No.440 of 2016 dated 30.11.2016 against

appellant Birbal Das @ Birbal Yadav and investigation against

non-FIR accused Nandu Yadav was kept pending.

Due to filing of separate charge sheet the trial

against the appellants were separately committed to the Court of

Sessions.

Appellant Birbal Das faced trial in Sessions Trial

No.139 of 2017/27 of 2018 for offences under Sections 304B,

302 and 201 of the Indian Penal Code. Appellant Anrudh Das

faced trial in Sessions Trial No.364 of 2016/715 of 2019 for

offences under Sections 304B/34 and 201/34 of the Indian Penal

Code.

By judgment dated 29.05.2019 and order of

sentence dated 31.05.2019 passed separately in two sessions

trial by the same Presiding Officer of the Court of learned Fast

Track Court No. I, Khagaria, the appellants were found guilty

for the offences under Sections 304B/34 and 201/34 of the Patna High Court CR. APP (SJ) No.2523 of 2019 dt.28-09-2021

Indian Penal Code and sentenced them to undergo rigorous

imprisonment for ten years along with fine of rupees ten

thousand for offence under Section 304B/34 of the Indian Penal

Code and rigorous imprisonment for three years along with

fine of rupees two thousand for offence under Section 201/34 of

the Indian Penal Code. In default of payment of fine of rupees

ten thousand the appellants were directed to undergo three

months simple imprisonment and in default of payment of fine

of rupees two thousand one month simple imprisonment was

ordered. Appellant Birbal Das was acquitted of charge under

Section 302 of the Indian Penal Code. The appellants have

challenged herein their conviction and sentence passed in the

aforesaid sessions trial.

2. The prosecution case, as disclosed in the first

written report of Mr. Arvind Yadav submitted to Parbatta Police

Station, is that his daughter K was married five years back with

appellant Birbal Das of village Parbatta, P.S. Parbatta, District-

Khagaria. The marriage was solemnized after giving gift (Dan

Dahej). After marriage Birbal Das and his brother Anrudh Das

(appellants above) always used to abuse and assault to K and

asked her to bring rupees one lac from her father failing which

she would be killed. The informant along with his relatives Patna High Court CR. APP (SJ) No.2523 of 2019 dt.28-09-2021

several times visited and consoled the appellants Birbal Das and

Anrudh Das; rather paid rupees sixty thousand. About five

months back, a male child born of the wedlock of Birbal and K.

On 23.12.2005 appellant Anrudh Das called the informant from

the mobile of K and informed that K has already died.

Thereafter, he disconnected the call. Thereafter, the informant

and others came to the house of Birbal Das. Only Anrudh Das

was found at the house. When the informant inquired

whereabouts of K, Anrudh Das abused and informed that he has

already killed K and the informant is free to do whatever he can.

Thereafter, the informant and others caught Anrudh Das to take

him to the police station. In the meantime, other accused

persons came there and started assault against the informant and

got forceful release of Anrudh Das. The villagers informed that

the dead body of 'K' is lying in the Jhaua field area. The

informant apprehended that the dead body of K was hidden by

the appellant and others just to screen the evidence of crime.

3. Mr. S.M. Ashraf, learned counsel appearing for

the appellants in both these appeals, submits that in Sessions

Trial No.139 of 2017 wherein only appellant Birbal Das faced

trial, only two prosecution witnesses were examined. One was

Arvind Yadav, the informant of the case, and another Dr. Patna High Court CR. APP (SJ) No.2523 of 2019 dt.28-09-2021

Birendra Kumar Sharma who had performed post mortem

examination on the dead body of K. Thus, this is a case of

solitary witness and conviction cannot be based on the sole

testimony of the informant who is an interested witness.

Learned counsel next contends that there is complete lack of

evidence that the victim lady K was tortured for non-fulfillment

of dowry demand before her death much-less "soon before" her

death.

4. In the matter of Anrudh Das contention is that

though the prosecution examined five witnesses. On totality

the situation remained the same that the prosecution failed to

prove that it was a case of dowry death inasmuch as the victim

was treated with cruelty for non-fulfillment of dowry demand

before her death. Reliance has been placed on the judgment of

the Hon'ble Supreme Court in Major Singh and another V.

State of Punjab reported in 2015(3) PLJR SC 263, and in the

case of Baijnath and others V. State of Madhya Pradesh

reported in 2017(1) PLJR SC 269.

5. Learned counsel for the respondent-State

contends that the crime alleged against the appellants is a social

crime. Hence, for minor infirmity, if any, the prosecution

evidence cannot be thrown away. The prosecution has proved Patna High Court CR. APP (SJ) No.2523 of 2019 dt.28-09-2021

that the victim had died within seven years of marriage in

unnatural circumstances for non-fulfillment of dowry demand.

The death was caused by the husband and other relatives of the

husband. There is nothing on the record that the death might

have taken place for some other reason.

6. Plurality of the prosecution witness to prove a

criminal charge is not the requirement of law unless the solitary

witness is not wholly reliable. The Informant Arvind Yadav

examined as PW 1 in Sessions Trial No.139 of 2017 deposed

that his daughter K was married with appellant Birbal Das of

village Parbatta. Birbal Das and Anrudh Das killed her within

five years of her marriage. The victim had given birth to a male

child who was residing along with the informant. K was killed

for dowry. Son-in-law Birbal Das had asked from this witness

for rupees one lac. The witness had paid rupees sixty thousand

and expressed his inability to make further payment. Appellant

Anrudh Das informed on mobile call that daughter of the

informant has been killed. Then the informant went to the

matrimonial house of his daughter but she was not there.

Anrudh Das told that he has already thrown away the dead body

after killing her then informant and others caught Anrudh Das to

take him to the police station but other named accused persons Patna High Court CR. APP (SJ) No.2523 of 2019 dt.28-09-2021

got him released. The witness admitted that he had signed on

the first written information. Thereafter the police went to

Jhaua Bahiar where dead body of his daughter was found in the

water. During cross-examination, the witness denied that he has

any knowledge that the victim died due to drowning in the

water.

PW 2 Dr. Birendra Kumar Sharma found a case of

asphyxial death due to throttling which resulted in cardiac

failure. The throttling was an ante mortem injury.

7. Ordinarily, such offences are committed within

the four corners of a house, hence, direct and independent

evidence regarding cruelty or harassment on the victim by her

husband or relatives of her husband may not be available.

However, the prosecution cannot be absolved of its duty to

prove the charge beyond all reasonable doubts.

Section 304B of the Indian Penal Code reads as

follows:

"Section 304B. Dowry death.-

(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her Patna High Court CR. APP (SJ) No.2523 of 2019 dt.28-09-2021

husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation.- For the purpose of this sub-section, "dowry" shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2)Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

Thus, the ingredients of offence under Section

304B of the Indian Penal Code are (i) Death of the woman

concern is by burn or bodily injury or occurs otherwise than in

normal circumstances and, (ii) Is within seven years of her

marriage and, (iii) That soon before her death she was subjected

to cruelty or harassment by her husband or any relative of her

husband for or in connection with any demand of dowry.

8. In the case on hand there is complete lack of

evidence that the victim was subjected to cruelty or harassment

by her husband or any of the relative of the husband for or in

connection with any demand of dowry. The informant is not an

eyewitness on cruelty to the deceased nor it is case of the Patna High Court CR. APP (SJ) No.2523 of 2019 dt.28-09-2021

informant that deceased had ever complained about harassment

at the hands of the appellants in connection with any demand of

dowry nor any other witness has been produced by the

prosecution to substantiate that they had occasion to see torture

to the victim by the husband or relatives of the husband in

connection with any dowry demand. Thus, the prosecution has

failed to prove the most important ingredient of charge under

Section 304B. Only for death of a woman otherwise under

normal circumstances within seven years of her marriage would

not attract the mischief of Section 304B unless there is

acceptable evidence that the woman was subjected to cruelty or

harassment in connection with demand of dowry by her husband

or other in-laws.

9. In the case of Amar Singh V. State of

Rajasthan reported in AIR 2010 SC 3391, convicts Jagdish and

Gordhani were acquitted by the High Court. The State

challenged the acquittal before the Supreme Court and the

Supreme Court refused to interfere with acquittal because there

was lack of evidence against Jagdish and Gordhani regarding

nature of harassment and torture meted out by them and the

Hon'ble Supreme Court in para-23 of the judgment observed as

follows:

Patna High Court CR. APP (SJ) No.2523 of 2019 dt.28-09-2021

"....... a prosecution witness who

merely uses the word "harassed" or

"tortured" and does not describe the exact

conduct of the accused which, according to

him, amounted to harassment or torture may

not be believed by the Court in cases under

Sections 498A and 304B IPC..."

In this case, the sole prosecution witness has not

even used the words that the victim was "harassed" or

"tortured" much less the nature of harassment and torture,

before her death.

10. Therefore, charge under Section 304B of the

Indian Penal Code against appellant Birbal Das does not stand

proved. There is no evidence that anyone saw the appellants

involved in making the evidence of commission of the offence

to disappear with intent to screen the offender from legal

punishment. Only on conjectures and surmises it cannot be

assumed that the appellants were involved in screening the

evidence of the crime. Therefore, in my view, the prosecution

has failed to prove the charge under Section 201 of the Indian

Penal Code as well.

11. In the trial of appellant Anrudh Das prosecution Patna High Court CR. APP (SJ) No.2523 of 2019 dt.28-09-2021

examined altogether five witnesses. PW 1 Mukesh Yadav is a

witness on the inquest report which was prepared in his

presence. The inquest was on the dead body of K. According to

this witness 'K' his niece was married five years ago with

appellant Birbal Das. Though the witness has deposed that K

was being assaulted in her matrimonial house for non-

fulfillment of dowry demand but he is not specific that he had

seen such assault or the deceased had reported to him about

such assault or any other person reported about the physical

assault to the deceased before her death for non-fulfillment of

demand of dowry.

PW 2 Manish Kumar is brother of the informant.

He had gone to the matrimonial village of the deceased along

with the informant. The witness is specific that appellant Birbal

Das was demanding rupees one lac as dowry and for non-

fulfillment of the same K was done to death. This witness is also

not on the point that the victim was treated with cruelty by the

appellants before her death for non-fulfillment of dowry

demand.

PW 3 Rudal Yadav has deposed that K was killed

for non-fulfillment of dowry demand. Rupees one lac was

being demanded from informant by Anrudh Das. However, Patna High Court CR. APP (SJ) No.2523 of 2019 dt.28-09-2021

this witness is also silent to prove that the victim was tortured

by the husband and other relatives of the husband before her

death for non-fulfillment of the dowry demand.

PW 4 Arvind Yadav, the informant of the case,

deposed in the same manner as he has deposed as PW 1 in trial

of Birbal Das. PW 5 is Dr. Birendra Kumar Sharma who had

found ligature mark on the dead body of K which was ante-

mortem in nature.

12. Thus, on careful scrutiny of the prosecution

evidence brought in the trial against Anrudh Das shows that the

prosecution failed to prove that the victim was being tortured

for non-fulfillment of dowry demand by the husband or relatives

of her husband before her death. The law is well settled that

unless the prosecution proves the ingredients of Section 304B of

the Indian Penal Code. The presumption under Section 113B of

the evidence Act would not come into play. In Baijnath's case

(supra) the Hon'ble Supreme Court observed in para-32 of the

judgment as follows:

"Noticeably this presumption as well is founded on the proof of cruelty or harassment of the woman dead for or in connection with any demand for dowry by the person charged with the offence. The presumption as to dowry death thus would get Patna High Court CR. APP (SJ) No.2523 of 2019 dt.28-09-2021

activated only upon the proof of the fact that the deceased lady had been subjected to cruelty or harassment for or in connection with any demand for dowry by the accused and that too in the reasonable contiguity of death.

Such a proof is thus the legislatively mandated prerequisite to invoke the otherwise statutorily ordained presumption of commission of the offence of dowry death by the person charged therewith."

In Major Singh's case (supra) the prosecution had

failed to prove that the deceased was treated with cruelty by her

husband or relatives of her husband before her death as there

was no direct evidence on the point. The information about

cruelty was gathered from Panchayatdars but none of the

participants in panchayat was produced as prosecution evidence

to prove the aforesaid ingredients nor there was any other

evidence. The ratio in Major Singh's case is applicable in the

present facts and circumstances of this case especially when

there is complete lack of evidence that the deceased was treated

with cruelty before her death for non-fulfillment of dowry

demand by the in-laws.

Patna High Court CR. APP (SJ) No.2523 of 2019 dt.28-09-2021

13. Likewise, there is no direct evidence that

appellant Anrudh Das was involved in screening the evidence of

crime with intent to save the real culprit of the crime. Hence,

charge under Section 201 of the Indian Penal Code also fails.

14. Consequently, both the appellants are entitled

to benefit of doubt and they, accordingly, deserve acquittal.

Hence, the impugned judgment and order of sentence are hereby

set aside and both these appeals are allowed. Appellant Anrudh

Das is on bail. He is exonerated from the liability of bail-

bonds. Appellant Birbal Das is in jail. Let him be set free at

once.

(Birendra Kumar, J) Mkr./-

AFR/NAFR                AFR
CAV DATE                21.09.2021
Uploading Date          28.09.2021
Transmission Date       28.09.2021